Citation Nr: 1019763
Decision Date: 05/27/10 Archive Date: 06/09/10
DOCKET NO. 05-24 460A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to an initial compensable rating for bilateral
hearing loss.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
E. Woodward Deutsch, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1952 to March
1956.
This matter comes before the Board of Veterans' Appeals
(Board) from a July 2005 rating decision of a Department of
Veterans Affairs (VA) Regional Office (RO) that denied an
initial compensable service connection for bilateral hearing
loss.
In January 2009, the Board remanded the claim to provide the
Veteran with an opportunity for a videoconference hearing
before a Veterans Law Judge. The requested hearing was
scheduled for April 9, 2010. However, the Veteran did not
report for that hearing. Nor did he provide good cause for
his failure to report or request that the hearing be
rescheduled. None of the notice letters regarding the
hearing has been returned as undeliverable. Accordingly, the
Veteran's request for a hearing is considered to be
withdrawn. 38 C.F.R. § 20.704(d) (2009).
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2)
(West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center in Washington, D.C.
REMAND
Although the Board regrets the additional delay, further
development is needed with respect to the Veteran's claim for
an initial compensable rating for bilateral hearing loss.
The Veteran was last afforded a VA audiological examination
in August 2004. Audiological testing at that time revealed
mild to severe sensorineural hearing loss in the right ear
and mild to severe mixed hearing loss in the left ear.
Following the August 2004 VA examination, the Veteran
submitted written statements indicating that he had recently
been prescribed hearing aids to treat his worsening hearing
loss. He also stated that his hearing loss significantly
impacted his social life to the extent that he could not talk
on the telephone or "hold decent conversations" with his
family and friends.
To further support his claim, the Veteran submitted a copy of
physical profile serial report, which was completed in
September 1991 during his period of Air Force Reserve
service. The report indicated that the Veteran had recently
exhibited a significant hearing threshold shift attributable
to excessive noise exposure. Significantly, while the
September 1991 report predates the August 2004 VA
audiological examination, it does not appear to have been
considered in the prior rating actions on the Veteran's
claim. Nor is there any indication that the RO has reviewed
the report and no waiver of initial review has been obtained.
38 C.F.R. §§ 19.37, 20.1304 (2009). The Board cannot
consider that additional evidence without first remanding the
case to the agency of original jurisdiction for initial
consideration or obtaining the Veteran's waiver. Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d
1339 (Fed. Cir. 2003). To ensure VA has met its duty to
assist and to fully comply with due process requirements, the
Board finds that on remand the issue on appeal should be
reviewed with consideration of all evidence received since
the issuance of the July 2005 statement of the case.
Next, VA's duty to assist includes a duty to provide a
medical examination or obtain a medical opinion where it is
necessary to make a decision on the claim. 38 U.S.C.A.
§ 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009);
Robinette v. Brown, 8 Vet. App. 69 (1995). When available
evidence is too old for an adequate evaluation of the
Veteran's current condition, VA's duty to assist includes
providing a new examination. Weggenmann v. Brown, 5 Vet.
App. 281 (1993). Here, the Veteran's August 2004 VA
audiological examination is stale, and he has indicated that
his bilateral hearing loss has worsened since that time. In
light of those assertions, the Board is uncertain as to the
current severity of the Veteran's hearing loss and how his
symptoms have progressed since the effective date of service
connection. Accordingly, the Board finds that a new VA
audiological examination is needed to fully and fairly assess
the merits of the Veteran's claim. 38 C.F.R. § 3.159(c)(2)
(2009). That new VA examination should include a review of
all pertinent evidence in the Veteran's claims folder. 38
C.F.R. § 4.1 (2009) (to ensure a thorough examination and
evaluation, the Veteran's service-connected disability must
be viewed in relation to its history). Additionally, in
light of the aforementioned evidence, that new examination
should include specific findings regarding any functional
limitations related to the Veteran's bilateral hearing loss.
Finally, VA medical records appear to be outstanding. The
record reflects that in October 2004, the Veteran received VA
outpatient treatment for multiple medical conditions,
including hearing loss. At that time, a VA treating provider
expressed an intention to "resubmit [the] consult for
audiology" and recommended that the Veteran return to the
clinic in four months. Thereafter, the Veteran submitted a
written statement indicating that he had been prescribed
hearing aids. However, no subsequent VA medical records were
associated with his claims folder. Because it appears from
the VA treating provider's notation, and the Veteran's
subsequent lay statement, that he has received additional VA
treatment for hearing loss since October 2004, the Board
finds that efforts to obtain any outstanding VA medical
records should be made on remand. 38 C.F.R. § 3.159(c)(2)
(2009); Bell v. Derwinski, 2 Vet. App. 611 (1992).
Accordingly, the case is REMANDED for the following actions:
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2009). Expedited handling is
requested.
1. Obtain and associate with the claims
folder all medical and dental records
from the VA Community Based Outpatient
Clinic in Homestead, Florida, and the VA
Medical Center in Miami, Florida, dated
from November 2004 to the present.
2. After the above development has been
completed, schedule the Veteran for a VA
examination to determine the current
severity of his service-connected
bilateral hearing loss. The claims
folder should be reviewed by the examiner
and the examination report should note
that review. All necessary tests, to
include audiological and Maryland CNC
testing, should be performed. The
examiner should also discuss how the
Veteran's bilateral hearing loss impacts
his activities of daily living, including
his ability to obtain and maintain
employment. 38 C.F.R. § 4.10 (2009).
3. Readjudicate the issue on appeal.
If the decision remains adverse to the
Veteran, issue a supplemental statement
of the case. Allow the appropriate
time for response, then return the case
to the Board.
The appellant has the right to submit additional evidence and
argument on the matter the Board is remanding. Kutscherousky
v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
United States Court of Appeals for Veterans Claims for
additional development or other appropriate action must be
handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112
(West Supp. 2009).
______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).